tag:blogger.com,1999:blog-90569949909191761342014-10-04T20:00:33.462-07:00The Philippine Bar ReviewerThis site provides useful outlines, materials and references in reviewing for the Philippine Bar Exams.Arnel D. Mateohttp://www.blogger.com/profile/12877582104587922363noreply@blogger.comBlogger12125tag:blogger.com,1999:blog-9056994990919176134.post-14046776319815338912007-08-28T22:07:00.000-07:002008-06-12T22:22:08.510-07:00PHIL. ASS. OF SERVICE EXPORTERS, INC. vs. RUBEN D. TORRES, ET AL. G.R. No. 101279 August 6, 1992<div align="justify">Prepared by: Arnel D. Mateo</div><div align="justify"><strong></strong></div><div align="justify"><strong>Facts:<br /></strong><br />Philippine Association of Service Exporters (PASEI, for short), is the largest national organization of private employment and recruitment agencies duly licensed and authorized by the POEA, to engaged in the business of obtaining overseas employment for Filipino landbased workers, including domestic helpers.<br /><br />On June 1, 1991, as a result of published stories regarding the abuses suffered by Filipino housemaids employed in Hong Kong, DOLE Secretary Ruben D. Torres issued Department Order No. 16, Series of 1991, temporarily suspending the recruitment by private employment agencies of "Filipino domestic helpers going to Hong Kong".<br /></div><div align="justify"></div><div align="justify">Pursuant to the above DOLE circular, the POEA issued Memorandum Circular No. 30, Series of 1991, dated July 10, 1991, providing GUIDELINES on the Government processing and deployment of Filipino domestic helpers to Hong Kong and the accreditation of Hong Kong recruitment agencies intending to hire Filipino domestic helpers.<br /></div><div align="justify">On August 1, 1991, the POEA Administrator also issued Memorandum Circular No. 37, Series of 1991, on the processing of employment contracts of domestic workers for Hong Kong. All Hong Kong recruitment agent/s hiring DHs from the Philippines shall recruit under the new scheme which requires prior accreditation which the POEA.<br /></div><div align="justify"></div><div align="justify">On September 2, 1991, the petitioner, PASEI, filed this petition for prohibition to annul the aforementioned DOLE and POEA circulars and to prohibit their implementation<br /><br /><strong>Issue:<br /></div></strong><div align="justify">WON the respondents acted with grave abuse of discretion and/or in excess of their rule-making authority in issuing said circulars.</div><div align="justify"><br /></div><div align="left"><strong>Ruling:</strong></div><div align="left"><strong></div></strong><div align="justify">No. Article 36 of the Labor Code grants the Labor Secretary the power to restrict and regulate recruitment and placement activities. On the other hand, the scope of the regulatory authority of the POEA, which was created by Executive Order No. 797 on May 1, 1982 to take over the functions of the Overseas Employment Development Board, the National Seamen Board, and the overseas employment functions of the Bureau of Employment Services, is broad and far-ranging.<br /></div><div align="justify"></div><div align="justify">The assailed circulars do not prohibit the petitioner from engaging in the recruitment and deployment of Filipino landbased workers for overseas employment. A careful reading of the challenged administrative issuances discloses that the same fall within the "administrative and policing powers expressly or by necessary implication conferred" upon the respondents.<br /></div><div align="justify"></div><div align="justify">Nevertheless, they are legally invalid, defective and unenforceable for lack of power publication and filing in the Office of the National Administrative Register as required in Article 2 of the Civil Code, Article 5 of the Labor Code and Sections 3(1) and 4, Chapter 2, Book VII of the Administrative Code of 1987. The administrative circulars in question may not be enforced and implemented.</div>Arnel D. Mateohttp://www.blogger.com/profile/12877582104587922363noreply@blogger.com0tag:blogger.com,1999:blog-9056994990919176134.post-87372534959306907112007-08-28T22:12:00.000-07:002008-06-12T22:21:54.415-07:00DILY DANY NACPIL vs. INTERNATIONAL BROADCASTING CORPORATION G.R. No. 144767. March 21, 2002<div align="justify">Prepared by: Arnel D. Mateo</div><div align="justify"><strong></strong></div><div align="justify"><strong>Facts:<br /></strong><br />Petitioner was the Assistant General Manager for Finance/Administration and Comptroller of private respondent Intercontinental Broadcasting Corporation (IBC) from 1996 until April 1997. Upon assumption of Emiliano Templo as the IBC President, petitioner was forced to retire. Templo refused to pay him his retirement benefits. Hence, in 1997, petitioner filed with the Labor Arbiter a complaint for illegal dismissal and non-payment of benefits.<br /><br />IBC alleged that the Labor Arbiter had no jurisdiction over the case, that the petitioner was a corporate officer who was duly elected by the Board of Directors of IBC; hence, the case qualifies as an intra-corporate dispute falling within the jurisdiction of the Securities and Exchange Commission (SEC).<br /><br />Petitioner argues that he is not a corporate officer of the IBC but an employee thereof since he had not been elected nor appointed as Comptroller and Assistant Manager by the IBC's Board of Directors. He pointed out that he had actually been appointed on January 11, 1995 by the IBC's General Manager, Ceferino Basilio.<br /><br /><strong>Issue:<br /></strong><br />Whether or not the Labor Arbiter had jurisdiction over the case for illegal dismissal and non-payment of benefits filed by petitioner.<br /><br /><strong>Ruling:<br /></div></strong><br /><div align="justify">Dismissal or non-appointment of a corporate officer is clearly an intra-corporate matter and jurisdiction over the case properly belongs to the SEC, not to the NLRC. Under Presidential Decree No. 902-A (the Revised Securities Act), Controversies in the election or appointment of directors, trustees, officers, or managers of such corporations, partnerships or associations fall under the exclusive of the SEC. Two elements are to be considered in determining whether the SEC has jurisdiction over the controversy, to wit: (1) the status or relationship of the parties; and (2) the nature of the question that is the subject of their controversy.<br /></div><div align="justify"></div><div align="justify">Since complainant's appointment was approved unanimously by the Board of Directors of the corporation, he is therefore considered a corporate officer and his claim of illegal dismissal is a controversy that falls under the jurisdiction of the SEC as contemplated by Section 5 of P.D. 902-A. That the position of Comptroller is not expressly mentioned among the officers of the IBC in the By-Laws is of no moment, because the IBC's Board of Directors is empowered under Section 25 of the Corporation Code and under the corporation's By-Laws to appoint such other officers as it may deem necessary. </div>Arnel D. Mateohttp://www.blogger.com/profile/12877582104587922363noreply@blogger.com0tag:blogger.com,1999:blog-9056994990919176134.post-16873250689480708842007-08-28T22:18:00.000-07:002008-06-12T22:21:38.669-07:00PRINCIPLES AND DOCTRINES ON TAXATION<div align="justify">Prepared by: Arnel D. Mateo</div><div align="justify"><strong></strong></div><div align="justify"><strong>I. PRINCIPLE OF NECESSITY<br /></div></strong><div align="justify"></div><div align="justify">The existence of the government is a necessity; the main source of revenue of the government is taxes. These are the life-blood of the government. The primary purpose of taxation is to generate funds for the State to finance the needs of the citizenry and to advance the common wealth. The government chiefly relies on taxation to obtain the means to carry on its operation.<br /></div><div align="justify">Cases:<br /></div><div align="justify"></div><div align="justify">Commissioner vs. Pineda, 21 SCRA 105- Taxes are the lifeblood of the government and their prompt and certain availability are an imperious need.<br /></div><div align="justify">CIR vs. Algue, 158 SCRA 8- The government will not be able to survive and continue to perform its functions without taxes.<br /><br /><strong>II. TAXATION IS INHERENTLY LEGISLATIVE<br /></div></strong><div align="justify"></div><div align="justify">Along with police power ( for public good and welfare ) and eminent domain ( for public use ), taxation ( for revenue ) is an inherent power of the sovereignty.<br /></div><div align="justify">Cases:<br /></div><div align="justify"></div><div align="justify">National Power Corporation vs. Albay, 186 SCRA 198- Power of taxation is legislative in character and is a legislative prerogative.<br /></div><div align="justify">Petro vs. Petilla, 198 SCRA 82- The legislative taxing power includes the authority: a. to determine the nature, object, extent, coverage, and situs of the tax imposition, b. to grant tax exemptions or condonations, and c. to specify or provide for the administrative, as well as judicial remedies that either the government or the taxpayers may avail themselves of in the proper implementation of the tax measure.<br /><br /><strong>III. TAXATION INCLUDES THE POWER TO DESTROY<br /></div></strong><div align="justify"></div><div align="justify">The power of taxation is sometime also called the power to destroy. Therefore, it should be exercised with caution to minimize injury to the proprietary rights of a taxpayer. It must be exercised fairly, equally and uniformly, lest the tax collector kills the ‘hen that lays the golden egg.’ And, in order to maintain the general public’s trust and confidence in the government, this power must be used justly and not treacherously.<br /></div><div align="justify">Cases:<br /></div><div align="justify"></div><div align="justify">Roxas vs. CTA, 23 SCRA 276- The power of taxation includes the power to destroy if it is used validly as an implement of the police power of the state. If it is used solely for the purpose of raising revenue, it does not include the power to destroy.<br /></div><div align="justify">Standard Oil Co. vs. Posadas, 55 Phil 715- While ordinarily the government does not tax its own political subdivisions or its other entities, it may, however, do so by providing for it explicitly.<br /><br /><strong>IV. TAXATION IS FOR A PUBLIC PURPOSE<br /></div></strong><div align="justify"></div><div align="justify">The proceeds of the tax must be used a. for the support of the State or b. for some recognized objects of government or directly to promote the welfare of the community.<br /></div><div align="justify">Cases:<br /></div><div align="justify"></div><div align="justify">Pascual vs. Sec. of Public Works, 110 Phil 331- The legislature is without power to appropriate public revenues for anything but a public purpose.<br /></div><div align="justify">Valentin Tio vs. Videogram Regulatory Board, 151 SCRA 208- The public purpose of a tax may legally exist even if the motive which impelled the legislature to impose the tax was to favor one industry over another.<br /><br /><strong>V. TAXPAYER SUIT<br /></div></strong><div align="justify"></div><div align="justify">It is the remedy available to a taxpayer when taxes are used for illegal activities or when the public funs are used by the government for projects which are not intended for a public purpose.<br /></div><div align="justify">Cases:<br /></div><div align="justify">Pascual vs. Sec. of Public Works, 110 Phil 331- It is only when an act complained of, which may include a legislative enactment, directly involves illegal disbursement of public funds derived from taxation.<br /></div><div align="justify"></div><div align="justify">Maceda vs. Macaraig, 197 SCRA 771- When the issue involve the legality of expenditure of tax money, a taxpayer suit could be filed. </div>Arnel D. Mateohttp://www.blogger.com/profile/12877582104587922363noreply@blogger.com0tag:blogger.com,1999:blog-9056994990919176134.post-48158966985817789102007-08-28T22:27:00.000-07:002008-06-12T22:21:22.814-07:00TREATY-MAKING IN THE PHILIPPINES<div align="justify">Prepared by: Arnel D. Mateo</div><div align="justify"><strong></strong></div><div align="justify"><strong>What is a treaty?<br /></div></strong><div align="justify">Under Philippine Laws, Treaties are international agreements entered into by the Philippines which require legislative concurrence after executive ratification. This term may include compacts like conventions, declarations, covenants and acts.<a title="" style="mso-footnote-id: ftn1" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn1" name="_ftnref1">[1]</a><br /></div><div align="justify">Under International Law, Treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.<a title="" style="mso-footnote-id: ftn2" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn2" name="_ftnref2">[2]</a><br /></div><div align="justify">Not all international agreements are governed by international law. The convention applies only to those which are “governed by the domestic law of one of the parties or some other national law chosen by the parties.<a title="" style="mso-footnote-id: ftn3" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn3" name="_ftnref3">[3]</a><br /><br /><strong>What is an executive Agreement?<br /></strong>Executive Agreements — similar to treaties except that they do not require legislative concurrence.<a title="" style="mso-footnote-id: ftn4" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn4" name="_ftnref4">[4]</a><br /><br /><strong>What is the distinction between a treaty and an executive agreement?<br /></strong></div><div align="justify">The difference between the two is sometimes difficult of ready ascertainment.<a title="" style="mso-footnote-id: ftn5" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn5" name="_ftnref5">[5]</a> Under international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers.<a title="" style="mso-footnote-id: ftn6" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn6" name="_ftnref6">[6]</a> International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.<a title="" style="mso-footnote-id: ftn7" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn7" name="_ftnref7">[7]</a><br /></div><div align="justify">In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or Congress. Generally, treaties of any kind, whether bilateral or multilateral, require Senate concurrence<a title="" style="mso-footnote-id: ftn8" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn8" name="_ftnref8">[8]</a> while executive agreements may be validly entered into without such concurrence.<a title="" style="mso-footnote-id: ftn9" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn9" name="_ftnref9">[9]</a><br /></div><div align="justify">The members of the Constitutional Commission acknowledged the distinction between a treaty and an executive agreement during their deliberations of Section 21 Article VII. One of the issues in the discussions was trying to identify the kind of international agreements that require Senate concurrence.<br /></div><div align="justify">Commissioner Joaquin Bernas made a clarification by quoting from the decision of the Supreme Court in the case of Commissioner of Customs vs. Eastern Sea Trading:<br /></div><div align="justify">“The right of the executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history, we have entered into executive agreements covering such subjects as commercial and consular relations, most favored nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of this has never been seriously questioned by our Courts.<br /></div><div align="justify">“Agreements with respect to the registration of trademarks have been concluded by the executive and various countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International agreements involving political issues or changes of national policy and those involving international agreements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail, carrying out well established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements.”<a title="" style="mso-footnote-id: ftn10" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn10" name="_ftnref10">[10]</a><br /></div><div align="justify">Commissioner Bernas further explained that international agreements, which require Senate concurrence, are those, which are permanent in nature. Also, if it is with prior authorization from Congress, it does not need subsequent concurrence by Congress.<a title="" style="mso-footnote-id: ftn11" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn11" name="_ftnref11">[11]</a><br /></div><div align="justify">The Department of Foreign Affairs in its press release<a title="" style="mso-footnote-id: ftn12" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn12" name="_ftnref12">[12]</a> said that in executive agreement, there is no fundamental change in policy, nor will there be need for legislation to fund the agreement. It does not impinge on any existing international legal obligation.<br /><br /><strong>What is the rationale for distinguishing a treaty form an executive agreement?<br /></strong><br />The distinction between a treaty or international agreement and an executive agreement is of great significance in the Philippines because the procedure followed in the process of ratification is different.<br /></div><div align="justify">If what is involved is a treaty, the concurrence by at least two-thirds of all the Members of the Senate is required.<a title="" style="mso-footnote-id: ftn13" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn13" name="_ftnref13">[13]</a> On the other hand, if what is involved is an executive, there is no such requirement.<br /><br /><strong>What is the procedure for determining whether an agreement is a treaty or an executive agreement?<br /></strong><br />a. Internal procedure within the Office of the President and the DFA<br /><br />In 1988, the Office of the President issued Memorandum Circular 89 to set the guidelines in case of conflict as to whether an agreement is a treaty or an executive agreement. The Legal Adviser of the Department of Foreign Affairs (DFA) and the Assistant Secretary on Legislative Affairs and the Senate will be given opportunity to comment on the nature of the agreement. Consultation shall be made with the leadership of the Senate. The Secretary of Foreign Affairs shall make the proper recommendation to the President.<a title="" style="mso-footnote-id: ftn14" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn14" name="_ftnref14">[14]</a><br /></div><div align="justify">In 1997, Executive Order 459 was issued and under Sec. 9 thereof, the DFA determines the nature of an agreement. Said Executive Order is silent if the determination by the DFA of the nature of agreement can be overturned by the President or not.<br /></div><div align="justify">If asked which of the two issuances is prevailing, as a rule, being a later act, E.O. 459 is controlling. However, newly appointed Associate Justice of the Supreme Court Antonio Eduardo Nachura, and prominent authors in international law Jorge Coquia and Senator Miriam Defensor Santiago (Chairman of the Senate Committee on Foreign Relations before adjournment of the 13th Congress) are of the opinion that Memorandun Circular 89 is still binding.<a title="" style="mso-footnote-id: ftn15" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn15" name="_ftnref15">[15]</a><br /><br /><strong>What is the current framework for trade negotiations?<br /></strong><br />a. Who has the power to negotiate or make treaties?<br /><br />The President has the power to make treaties implicitly in the general grant of authority in Section 1, Article VII that “The executive power is vested in the President of the Philippines,” in particular as this is applied in foreign relations.<a title="" style="mso-footnote-id: ftn16" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn16" name="_ftnref16">[16]</a><br /></div><div align="justify">By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country.<a title="" style="mso-footnote-id: ftn17" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn17" name="_ftnref17">[17]</a> In many ways, the President is the chief architect of the nation’s foreign policy; his “dominance in the field of foreign relations is (then) conceded.”<a title="" style="mso-footnote-id: ftn18" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn18" name="_ftnref18">[18]</a> Wielding vast powers an influence, his conduct in the external affairs of the nation, as Jefferson describes, is “executive altogether."<a title="" style="mso-footnote-id: ftn19" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn19" name="_ftnref19">[19]</a><br /></div><div align="justify">Since the President is the head of state in the system of government of the Philippines, he is the authority in the country’s external or foreign relations.<a title="" style="mso-footnote-id: ftn20" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn20" name="_ftnref20">[20]</a> Being vested with diplomatic powers, the President formulates foreign policy, deals with international affairs, represents the state with foreign nations, maintains diplomatic relations, and enters into treaties or international agreements. Likewise, the power granted to the Senate to concur in treaties<a title="" style="mso-footnote-id: ftn21" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn21" name="_ftnref21">[21]</a> is to be interpreted as referring to treaties which the President makes and submits to the Senate for concurrence.<br /></div><div align="justify">Normally, it is the Head of State or the Head of the Ministry of Foreign Affairs who binds States in treaties. These persons do not need to produce evidence of full powers to conclude a treaty. Treaty ratification is one of the incidents of their position. For purposes of adopting a text to a treaty, the head of the diplomatic mission or accredited representatives of States to an international conference or one of its organs are empowered to authenticate or accredit the text of a treaty. If an act was performed without authorization or without the full powers, a treaty can still be given force and effect provided it is subsequently confirmed by the State.<a title="" style="mso-footnote-id: ftn22" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn22" name="_ftnref22">[22]</a><br /><br />b. Working procedure<br /></div><div align="justify">Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise<a title="" style="mso-footnote-id: ftn23" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn23" name="_ftnref23">[23]</a>:<br /></div><div align="justify">The usual steps in the treaty-making process are: <strong><em>negotiation, signature, ratification, and exchange of the instruments of ratification.</em></strong> The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.<br /></div><div align="justify">1. <strong>Negotiation</strong> may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even “collapse” in case the parties are unable to come to an agreement on the points under consideration.<br /></div><div align="justify">In the Philippines, the negotiation phase of the treaty making process is essentially performed and controlled by the Executive branch of the government through the Department of Foreign Affairs and the respective government agencies involved. Once a treaty proposal is received by the Government the Department of Foreign is tasked to determine whether or not said agreement is a treaty or an executive agreement. It is the Chief Executive, through the recommendation of the DFA Secretary, who designates the persons who will comprise the Philippine delegation and the departments, which will be involved and consulted in the negotiation.<br /></div><div align="justify">Pursuant to Executive Order 459, the lead agency in the negotiation of a treaty or an executive agreement or any amendment thereto shall convene a meeting of the panel members prior to the commencement of any negotiations for the purpose of establishing the parameters of the negotiating position of the panel. No deviation from the agreed parameters shall be made without prior consultation with the members of the negotiating panel.<br /></div><div align="justify">The panel of negotiators is normally composed of several individuals from the different agencies of government who are technical experts and resource persons in certain areas of specialization. This group of persons is normally referred to as technical working groups. A treaty, which has far-reaching effects on the different industries, may involve several technical working groups. The technical working groups would meet and outline the Philippine position and embody this position in writing. Ideally, the Philippine position must be in conformity with the outlined policies, development goals and targets of the government and in general pursue Philippine interest.<br /></div><div align="justify">During the negotiation process, negotiators of each State party would meet and discuss to arrive at a mutually beneficial arrangement. Battles over semantics and phrasing are normal in treaty negotiations. This stage is very tedious and negotiators must be very vigilant in looking at each particular provision. Before concurring to a particular provision, said negotiator must agree to it only after consultation with other negotiators and evaluate if it is in conformity with the outlined Philippine position. In issues of primordial importance or high significance, public consultation must be performed to be able to determine its overall impact on the industries that are affected or parties who will be prejudiced. Negotiators aside from being experts must be strong, assertive and emphatic in pursuing the Philippine position. Disagreements among the negotiators over certain provisions is also normal, but some experienced negotiators have perfected the art of inserting provisions in unexpected sections or rephrasing rejected provisions to make it appear acceptable. The quote “timing is everything” finds application in the art negotiations, some negotiators will invoke provisions of doubtful validity, during such times when negotiators of the other party are already quite tired or weary from long hours spent on text analysis, interpretation and revision. Once a final draft of the agreement is reached, it will be sent to the office of the Chief Executive who will signify his approval. If he approves the agreement, he will forward it to the Office of the Executive Secretary, who in turn, will attest, to the authenticity and veracity of the text signed or ratified. The Office of the Executive Secretary receives texts in their final form but can override these agreements on broad grounds of it being against the Constitution, the law or public policy, in general. <a title="" style="mso-footnote-id: ftn24" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn24" name="_ftnref24">[24]</a><br /></div><div align="justify">2. If and when the negotiators finally decide on the terms of the treaty, the same is opened for <strong>signature.</strong> This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state.<br /></div><div align="justify">3. <strong>Ratification,</strong> which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them. Ratification is generally held to be an executive act, undertaken by the head of the state or of the government, as the case may be, through which the formal acceptance of the treaty is proclaimed.<a title="" style="mso-footnote-id: ftn25" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn25" name="_ftnref25">[25]</a> A State may provide in its domestic legislation the process of ratification of a treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation.<a title="" style="mso-footnote-id: ftn26" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn26" name="_ftnref26">[26]</a><br /></div><div align="justify">In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification.<a title="" style="mso-footnote-id: ftn27" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn27" name="_ftnref27">[27]</a><br /></div><div align="justify">4. The next step is <strong>the exchange of the instruments of ratification</strong>, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature<a name="_ftnref17">.</a><a title="" style="mso-footnote-id: ftn28" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn28" name="_ftnref28">[28]</a> [emphasis supplied]<br /></div><div align="justify">5. <strong>In our jurisdiction, for the treaty to be valid and effective, it must be concurred in by the Senate.</strong> The process of treaty concurrence by the Senate follows the procedure under the 1987 Constitution on the passage of bills. Such rules are supplemental by the Rules of the Senate. The step-by-step process of treaty concurrence is discussed below.<br /></div><div align="justify">Initially, the President, through a letter to the Senate, transmits to the Senate the Instrument of Ratification and the text of the ratified treaty for concurrence pursuant to Sec. 21, Art. VII of the Constitution. The President transmits the same by acting through the Executive Secretary, who himself makes a letter of endorsement to the Senate. <a title="" style="mso-footnote-id: ftn29" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn29" name="_ftnref29">[29]</a><br /></div><div align="justify">The Senate receives the agreement through its Legislative Bills and Index Services (Bills and Index). The Bills and Index reproduces the text of the agreement and includes it in the Order of Business. It also indexes and publishes an abstract of the agreement.<br /></div><div align="justify">At the beginning of each Senate Session, the Secretary of the Senate reports all bills, proposed Senate resolutions, and correspondences from the other branches of the government, and such other matters included in the Order of Business. Like an ordinary bill, the international agreement undergoes three readings.<br /></div><div align="justify">In the first reading, only the title and number is read. The title usually goes “Concurrence in the Ratification of (the treaty or international agreement)” with the corresponding Proposed Senate Resolution Number. <a title="" style="mso-footnote-id: ftn30" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn30" name="_ftnref30">[30]</a><br /></div><div align="justify">Afterwards, the treaty is referred to the Committee on Foreign Relations. If the treaty concerns other Committees, it is also referred to such other Committees for their joint consideration and recommendation. As an illustration, the Visiting Forces Agreement (VFA) was also referred to the Committee on National Defense. If the treaty concerns almost all or all the Senate Committees, it is referred to what is called the Committee of the Whole. For instance, the World Trade Organization (WTO) was referred to the Committee of the Whole. The role of the Committee is to study and analyze the agreement. It makes consultations to studies and position papers. It conducts public hearings and considers public testimonies. The final output and recommendations are documented in the committee report. The committee report is filed with the Bills and Index, which then includes it in the Calendar of Business for second reading. <a title="" style="mso-footnote-id: ftn31" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn31" name="_ftnref31">[31]</a><br /></div><div align="justify">At the start of the second reading, the Senator-Sponsor/s of the treaty endorses the committee report to the Chamber through a sponsorship speech. During the second reading, the treaty would be opened to general debate and to amendments. At the close of the debate, the members of the Senate would vote.<br /></div><div align="justify">If approved by the Senate, the bill would pass to third reading. The Committee on Foreign Relations will document any action taken in the form of a Proposed Resolution. The Proposed Resolution shall be engrossed and printed by the Bills and Index, and distributed to each Senator three (3) days before third reading. <a title="" style="mso-footnote-id: ftn32" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn32" name="_ftnref32">[32]</a><br /></div><div align="justify">After three days from the distribution of the resolution with the treaty attached thereto, the Proposed Resolution shall be submitted for nominal voting. The treaty shall be deemed approved if 2/3 of the Senators voted for its approval. A Senate Resolution concurring in the ratification of the treaty is then adopted. The adopted Senate Resolution is brought to the Secretary of the Senate, who thereafter transmits a copy thereof to the Secretary of Foreign Affairs.<br /></div><div align="justify">c. Opportunities/venues for private sector participation<br /><br />Although the Chief Executive is the sole authority in treaty-making, it is nonetheless the policy of the State that the people and their organizations have the right to participate in decision-making processes.<a title="" style="mso-footnote-id: ftn33" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn33" name="_ftnref33">[33]</a> Organizations refer to trade unions, peasant organizations, urban poor, cooperatives, human rights groups, religious groups, and also associations of landowners and businessmen. The role of the State, by enacting a law, would be “mere facilitation” of the consultation mechanisms, and not their creation, for consultation mechanisms were already operating without the State’s action by law. Also, “people” refers to all the people, including minors.<a title="" style="mso-footnote-id: ftn34" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn34" name="_ftnref34">[34]</a><br /></div><div align="justify">Also, the people shall have the right to access to all transactions of the State that concern public interest, subject to standards prescribed by law.<a title="" style="mso-footnote-id: ftn35" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn35" name="_ftnref35">[35]</a> During the deliberations of the Constitutional Commission, Commissioner Blas Ople, the sponsor of Sec. 28 Art. II, said that “transactions” include not just the perfected contract but also the steps and negotiations taken that led to a contract. Commissioners Ople and Napoleon Rama further explained that the difference between the provision under State Policies and that under the Bill of Rights is that the latter affords the right of the people to demand information while the former speaks of the duty of the government to disclose information even when nobody demands.<a title="" style="mso-footnote-id: ftn36" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn36" name="_ftnref36">[36]</a> It necessarily follows that in all negotiations made by the President as to entering into international agreements, it is the duty of the government to disclose to the people, even without the latter making a demand, all its acts, but always limited by conditions prescribed by law.<br /></div><div align="justify">The Supreme Court laid down in Chavez vs. Presidential Commission on Good Government<a title="" style="mso-footnote-id: ftn37" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn37" name="_ftnref37">[37]</a> some of the restrictions to the State policy of public disclosure and to the exercise of the right to information: 1) National security matters which include State secrets regarding military and intelligence information, diplomatic matters, and information on inter-government exchanges prior to the conclusion of treaties and executive agreements; 2) trade secrets pursuant to the Intellectual Property Code; 3) banking transactions as provided by the Secrecy of Bank Deposits Act; 4) criminal matters or classified law enforcement matters; and 5) other confidential matters including diplomatic correspondence, closed door Cabinet meetings, executive sessions of Congress, and internal deliberations of the Supreme Court.<br /></div><div align="justify">The right guaranteed by Section 7 of the Bill of Rights is the right to information on matters of public concern.<a title="" style="mso-footnote-id: ftn38" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn38" name="_ftnref38">[38]</a> A consequence of this right is the right to access official records and documents. These rights are “subject to such limitations as may be provided by law.” It follows that the limitations include regulations on determining what information are matters of public concern, and the manner of access to such matters of public concern.<br /></div><div align="justify">In the case of Legaspi vs. Civil Service Commission,<a title="" style="mso-footnote-id: ftn39" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn39" name="_ftnref39">[39]</a> the Supreme Court said that “public concern” has no exact definition. It encompasses an extensive scope of subjects which the public may want to know, either because it directly affects their lives or simply because it arouses his interest. Each case must be examined carefully.<br /></div><div align="justify">It was also held in the above case that the duty to disclose information of public concern and to allow access to public records is not discretionary on the part of the concerned government agency. If denied of the enjoyment of the Constitutional right, the remedy of the citizen is to file a petition for mandamus to compel the performance of the constitutional obligation.<br /></div><div align="justify">Indeed, under Sec. 1 of Art. II (Declaration of Principles and State Policies) of the 1987 Constitution, “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.” Republicanism means all government authority emanates from the people and is exercised by representatives chosen by the people. Hence, the people are declared supreme.<a title="" style="mso-footnote-id: ftn40" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn40" name="_ftnref40">[40]</a><br /><br /><strong>What is the significant role of the Legislative branch in the treat-making process?</strong><br /><br />Notwithstanding the sole authority of the President to negotiate and enter into treaties, the 1987 Constitution limits his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity and effectivity of the treaty entered into by him.<a title="" style="mso-footnote-id: ftn41" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn41" name="_ftnref41">[41]</a> The role of the Senate is confined to simply giving or withholding its consent to the ratification.<a title="" style="mso-footnote-id: ftn42" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn42" name="_ftnref42">[42]</a><br /></div><div align="justify">The involvement of the Senate in the treaty-making process manifests the adherence of the Philippine system of government to the principle of checks and balances. This indispensable participation of the legislative branch by way of concurrence provides the “check” to the ratification of the treaty by the executive branch.<br /><br /><strong>What is the effect of Senate Concurrence to a treaty?<br /></strong><br />A treaty becomes valid and effective if concurred in by two-thirds of all the members of the Senate.<a title="" style="mso-footnote-id: ftn43" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn43" name="_ftnref43">[43]</a> This means it forms part of Philippine law by virtue of transformation. By an act of the legislature, treaty rules may be transformed into Philippine law, to be applied or enforced as part of Philippine law. <a title="" style="mso-footnote-id: ftn44" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn44" name="_ftnref44">[44]</a><br /></div><div align="justify">The treaty becomes part of the law of the land and it becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. In Bayan vs. Zamora<a title="" style="mso-footnote-id: ftn45" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn45" name="_ftnref45">[45]</a>, the Supreme Court said that with the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution,<a title="" style="mso-footnote-id: ftn46" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn46" name="_ftnref46">[46]</a> declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.<br /></div><div align="justify">As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. While the international obligation devolves upon the state and not upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation.<a title="" style="mso-footnote-id: ftn47" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn47" name="_ftnref47">[47]</a> Hence, we cannot readily plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international law.<br /></div><div align="justify">Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: “Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.”<a title="" style="mso-footnote-id: ftn48" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn48" name="_ftnref48">[48]</a><br />Equally important is Article 26 of the convention which provides that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” This is known as the principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law, supported by the jurisprudence of international tribunals.<a title="" style="mso-footnote-id: ftn49" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn49" name="_ftnref49">[49]</a><br /></div><div align="justify"><strong>What is the effect if the Senate does not concur to a treaty?</strong><br /></div><div align="justify">As provided for by the constitution, a treaty not concurred in by the Senate will not be valid and effective.<a title="" style="mso-footnote-id: ftn50" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn50" name="_ftnref50">[50]</a><br /></div><div align="justify"><strong>Under the Philippine Legal System, how does a treaty stand in relation to the Philippine Constitution?<br /></strong><br />The Constitution is the basis for ascertaining the legality or validity of the treaty. By virtue of Article VIII, Section 5(2)(a) of the Constitution, the Supreme Court may determine the constitutionality of a treaty or declare it as violative of a statute.<a title="" style="mso-footnote-id: ftn51" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn51" name="_ftnref51">[51]</a><br /><br /><strong>How does a treaty stand in relation to a statute?<br /></strong></div><div align="justify">Being part of the law of the land and therefore an internal law, a treaty is not superior to an enactment of the Congress of the Philippines, rather it would be in the same class as the latter.<a title="" style="mso-footnote-id: ftn52" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn52" name="_ftnref52">[52]</a></div><div align="justify"><br /><a title="" style="mso-footnote-id: ftn1" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref1" name="_ftn1">[1]</a> Section 2(b)Executive Order No. 459, Providing for the Guidelines in the Negotiation of International Agreements and its Ratification<br /><a title="" style="mso-footnote-id: ftn2" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref2" name="_ftn2">[2]</a> Article 2 (1) (a), Vienna Convention on the Law of Treaties<br /><a title="" style="mso-footnote-id: ftn3" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref3" name="_ftn3">[3]</a> Merlin M. Magallona, Primer on the Law of Treaties, p. 115<br /><a title="" style="mso-footnote-id: ftn4" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref4" name="_ftn4">[4]</a> Ibid. Sec.2(c)<br /><a title="" style="mso-footnote-id: ftn5" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref5" name="_ftn5">[5]</a> Sayre, “The Constitutionality of Trade Agreements Acts” 39 COLUMBIA L.R. 651, 755, quoted in 3 SCRA 357<br /><a title="" style="mso-footnote-id: ftn6" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref6" name="_ftn6">[6]</a> Hackworth, Digest of International Law, Vol. 5, p. 395, cited in USAFE Veterans Association Inc. vs. Treasurer of the Philippines, 105 Phil. 1030, 1037 [1959].<br /><a title="" style="mso-footnote-id: ftn7" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref7" name="_ftn7">[7]</a> Richard J. Erickson, “The Making of Executive Agreements by the United States Department of Defense: An agenda for Progress,” 13 Boston U. Intl. L.J. 58 [1995], citing Restatement [third] of Foreign Relations Law pt. III, introductory note [1987] and Paul Reuter, Introduction to the Law of Treaties 22 [Jose Mico &amp; Peter Haggemacher trans., 1989] cited in Consolidated Memorandum, p. 32.<br /><a title="" style="mso-footnote-id: ftn8" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref8" name="_ftn8">[8]</a> Joaquin G. Bernas, S.J., Constitutional Structure and Powers of Government, Second Edition 1997<br /><a title="" style="mso-footnote-id: ftn9" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref9" name="_ftn9">[9]</a> Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351<br /><a title="" style="mso-footnote-id: ftn10" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref10" name="_ftn10">[10]</a> The citation of said case is 3 SCRA 351.<br /><a title="" style="mso-footnote-id: ftn11" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref11" name="_ftn11">[11]</a> Bernas, Id.<br /><a title="" style="mso-footnote-id: ftn12" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref12" name="_ftn12">[12]</a> Press Release No. 314-03; 26 June 2003, Department of Foreign Affairs<br /><a title="" style="mso-footnote-id: ftn13" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref13" name="_ftn13">[13]</a> Section 21, Article VII, 1987 Philippine Constitution<br /><a title="" style="mso-footnote-id: ftn14" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref14" name="_ftn14">[14]</a> Memorandum Circular No. 89 of the Office of the President (1988).<br /><a title="" style="mso-footnote-id: ftn15" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref15" name="_ftn15">[15]</a> Ramos, Infante, Pasco, Cabugao, “Memorandum on Negotiation and Treaty Ratification Process”<br /><a title="" style="mso-footnote-id: ftn16" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref16" name="_ftn16">[16]</a> Merlin M. Magallona, A Primer in International Law in Relation to Philippine Law, p.50<br /><a title="" style="mso-footnote-id: ftn17" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref17" name="_ftn17">[17]</a> Bayan vs. Zamora, G.R. No. 138570. October 10, 2000<br /><a title="" style="mso-footnote-id: ftn18" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref18" name="_ftn18">[18]</a> Cortes, “The Philippine Presidency a study of Executive Power, 2nd Ed.,” p. 195.<br /><a title="" style="mso-footnote-id: ftn19" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref19" name="_ftn19">[19]</a> Cruz, Phil. Political Law, 1995 Ed., p. 223.<br /><a title="" style="mso-footnote-id: ftn20" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref20" name="_ftn20">[20]</a> Pimentel, Jr. vs. Office of the Executive Secretary, 462 SCRA 622 (2005), p. 632, citing Cortes, The Philippine Presidency: A Study of Executive Power (1966), p. 187.<br /><a title="" style="mso-footnote-id: ftn21" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref21" name="_ftn21">[21]</a> Section 21, Article VII, 1087 Constitution<br /><a title="" style="mso-footnote-id: ftn22" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref22" name="_ftn22">[22]</a> Id., Art. 8.<br /><a title="" style="mso-footnote-id: ftn23" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref23" name="_ftn23">[23]</a> Pimentel vs. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005<br /><a title="" style="mso-footnote-id: ftn24" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref24" name="_ftn24">[24]</a> Ramos, Infante, Pasco, Cabugao, Interview, Atty. Minerva Tan, Office of the Executive Secretary, cited in the “Memorandum on Negotiation and Treaty Ratification Process”<br /><a title="" style="mso-footnote-id: ftn25" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref25" name="_ftn25">[25]</a> Gerhard von Glahn, Law Among Nations, An Introduction to Public International Law, 4th Ed., p. 486.<br /><a title="" style="mso-footnote-id: ftn26" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref26" name="_ftn26">[26]</a> Article 14 of the Vienna Convention, cited in Coquia and Defensor-Santiago, Intenational Law, 1998 Ed., pp. 506-507.<br /><a title="" style="mso-footnote-id: ftn27" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref27" name="_ftn27">[27]</a> Cruz, Isagani, “International Law”, 1985 Ed., p. 175.<br /><a title="" style="mso-footnote-id: ftn28" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref28" name="_ftn28">[28]</a> Cruz, International Law (1998 Ed.), pp. 172-174.<br /><a title="" style="mso-footnote-id: ftn29" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref29" name="_ftn29">[29]</a> The Senate Archives have a compilation of some of the documents and letters of government officials and members of the Philippine Mission to the United Nations (including those of then President Fidel Ramos, Executive Secretary Teofisto Guingona, and Foreign Affairs Secretary Roberto Romulo) regarding the World Trade Organization. This compilation is indexed as CP-Senate Res. No. 97 B9-F97 in the Archives but it can be asked as documents pertaining to the WTO deliberations.<br /><a title="" style="mso-footnote-id: ftn30" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref30" name="_ftn30">[30]</a> Rules of the Senate, Rule 36<br /><a title="" style="mso-footnote-id: ftn31" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref31" name="_ftn31">[31]</a> Interview with Eduardo Sibuma, supra.<br /><a title="" style="mso-footnote-id: ftn32" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref32" name="_ftn32">[32]</a> [32] Sec. 26(2), Art. VI of the 1987 Constitution. Under the same provision, the requirements of three readings on separate days and the distribution of the final copies of the bill before its passage may be dispensed with by a certificate of urgency issued by the President for the purpose of meeting a public calamity or emergency.<br /><br /><a title="" style="mso-footnote-id: ftn33" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref33" name="_ftn33">[33]</a> Sec. 16, Art. XIII of the 1987 Constitution, “The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and effective decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms.”<br /><a title="" style="mso-footnote-id: ftn34" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref34" name="_ftn34">[34]</a> Bernas, The Intent of the 1986 Constitution Writers (1995), pp. 998-1004, citing II Record of the Constitutional Commission, p. 608 and III Record of the Constitutional Commission pp. 146-147, 162-163.<br /><a title="" style="mso-footnote-id: ftn35" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref35" name="_ftn35">[35]</a> Sec. 28, Art. II of the 1987 Constitution, “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”<br /><a title="" style="mso-footnote-id: ftn36" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref36" name="_ftn36">[36]</a> Bernas, id, pp. 155-156, citing IV Record of the Constitutional Commission, pp. 24-26, 29.<br /><a title="" style="mso-footnote-id: ftn37" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref37" name="_ftn37">[37]</a> 299 SCRA 744, pp. 763-765.<br /><a title="" style="mso-footnote-id: ftn38" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref38" name="_ftn38">[38]</a> Sec. 7, Art. III of the 1987 Constitution , “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”<br /><a title="" style="mso-footnote-id: ftn39" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref39" name="_ftn39">[39]</a> 150 SCRA 530 (1987).<br /><a title="" style="mso-footnote-id: ftn40" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref40" name="_ftn40">[40]</a> Cruz, Philippine Political Law (2002 Ed.), pp.51-52.<br /><a title="" style="mso-footnote-id: ftn41" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref41" name="_ftn41">[41]</a> Sec. 21, Art. VII of the 1987 Constitution, “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.”<br /><a title="" style="mso-footnote-id: ftn42" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref42" name="_ftn42">[42]</a> Isagani Cruz, International Law, 2000, p.174<br /><a title="" style="mso-footnote-id: ftn43" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref43" name="_ftn43">[43]</a> Section 21, Article VII, 1987 Constitution.<br /><a title="" style="mso-footnote-id: ftn44" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref44" name="_ftn44">[44]</a> Merlin M. Magallona, A Primer in International Law in Relation to Philippine Law, p. 49<br /><a title="" style="mso-footnote-id: ftn45" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref45" name="_ftn45">[45]</a> G.R. No. 138570. October 10, 2000<br /><a title="" style="mso-footnote-id: ftn46" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref46" name="_ftn46">[46]</a> Sec. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.<br /><a title="" style="mso-footnote-id: ftn47" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref47" name="_ftn47">[47]</a> Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases and Materials, 2nd Ed American Casebook Series, p. 136.<br /><a title="" style="mso-footnote-id: ftn48" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref48" name="_ftn48">[48]</a> Gerhard von Glah, supra, p. 487.<br /><a title="" style="mso-footnote-id: ftn49" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref49" name="_ftn49">[49]</a> Harris, p. 634 cited in Coquia, International Law, supra, p. 512.<br /><a title="" style="mso-footnote-id: ftn50" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref50" name="_ftn50">[50]</a> Sec. 21, Art. VII of the 1987 Constitution<br /><a title="" style="mso-footnote-id: ftn51" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref51" name="_ftn51">[51]</a> Merlin M. Magallona, A Primer in International Law in Relation to Philippine Law, p.58<br /><a title="" style="mso-footnote-id: ftn52" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref52" name="_ftn52">[52]</a> Abbas v. Commission on Elections (179 SCRA 287)</div>Arnel D. Mateohttp://www.blogger.com/profile/12877582104587922363noreply@blogger.com1tag:blogger.com,1999:blog-9056994990919176134.post-89756452424006221542008-06-12T22:14:00.000-07:002008-06-12T22:18:20.762-07:00Set-off: Compensation in Taxation<strong>Rule on Compensation of Taxes:</strong> There can be no off-setting of taxes against the claims that the taxpayer may have against the government. Government and taxpayer are not mutually creditors and debtors of each other under Article 1278 of the Civil Code and a claim for taxes is not such a debt, demand, contract or judgment as is allowed to be set-off. (REPUBLIC vs. MAMBULAO LUMBER COMPANY, ET AL. , ENGRACIO FRANCIA vs. INTERMEDIATE APPELLATE COURT, ET AL.)<br /><br /><strong>Exception to the rule:</strong> When both taxes and claim against the government is overdue, demandable and fully liquidated. Government has been recognized and an amount has already been appropriated for the purpose by a corresponding law (MELECIO R. DOMINGO vs. LORENZO C. GARLITOS, ET AL. )<br /><br /><strong>Cases:</strong><br /><br /><a name="top"></a><strong>REPUBLIC vs. MAMBULAO LUMBER COMPANY, ET AL.<br />G.R. No. L-17725. February 28, 1962<br /></strong><br />Facts:<br /><br />Defendants have a liability for forest charges to the Republic of the Philippines. Defendants contended that since the Republic of the Philippines has not made use of those reforestation charges (RA 115) collected from it for reforesting the denuded area of the land covered by its license, the Republic of the Philippines should refund said amount, or, if it cannot be refunded, at least it should be compensated with what Mambulao Lumber Company owed the Republic of the Philippines for reforestation charges.<br /><br />Issue:<br /><br />May reforestation charges be set-off to forest charges owed by defendants to the government?<br /><br />Ruling:<br /><br />No. Appellant and appellee are not mutually creditors and debtors of each other. Consequently, the law on compensation is inapplicable. The forest charges which the defendant Mambulao Lumber Company has paid to the government, are in the coffers of the government as taxes collected, and the government does not owe anything, crystal clear that the Republic of the Philippines and the Mambulao Lumber Company are not creditors and debtors of each other, because compensation refers to mutual debts.<br /><br /><strong>MELECIO R. DOMINGO vs. LORENZO C. GARLITOS, ET AL.<br />G.R. No. L-18994. June 29, 1963</strong><br /><br />Facts:<br /><br />The government has a claim against the estate of the Walter Scott Price of estate and inheritance taxes, charges and penalties amounting to P40,058.55. The government is at the same time indebted to the estate under administration in the amount of P262,200.<br /><br />Issue:<br /><br />May the claim by the government against the estate be deducted from its debt to the estate? May compensation take place?<br /><br />Ruling:<br /><br />Yes. The claim of the estate against the Government has been recognized and an amount of P262,200 has already been appropriated for the purpose by a corresponding law (Rep. Act No. 2700). Under the above circumstances, both the claim of the Government for inheritance taxes and the claim of the intestate for services rendered have already become overdue and demandable is well as fully liquidated. Compensation, therefore, takes place by operation of law, in accordance with the provisions of Articles 1279 and 1290 of the Civil Code, and both debts are extinguished to the concurrent amount. compensation takes effect by operation of law, and extinguished both debts to the concurrent amount.<br /><br /><strong>ENGRACIO FRANCIA vs. INTERMEDIATE APPELLATE COURT, ET AL.</strong><br /><strong>G.R. No. L-67649. June 28, 1988<br /></strong><br />Facts:<br /><br />On October 15, 1977, a 125 square meter portion of Francia's property was expropriated by the Republic of the Philippines for the sum of P4,116.00 representing the estimated amount equivalent to the assessed value of the aforesaid portion.<br />Since 1963 up to 1977 inclusive, Francia failed to pay his real estate taxes. Thus, on December 5, 1977, his property was sold at public auction by the City Treasurer of Pasay City pursuant to Section 73 of Presidential Decree No. 464 known as the Real Property Tax Code in order to satisfy a tax delinquency of P2,400.00.<br /><br />Issue:<br /><br />May compensation take place?<br /><br />Ruling:<br /><br />There can be no off-setting of taxes against the claims that the taxpayer may have against the government. A person cannot refuse to pay a tax on the ground that the government owes him an amount equal to or greater than the tax being collected. The collection of a tax cannot await the results of a lawsuit against the government.<br /><br />A claim for taxes is not such a debt, demand, contract or judgment as is allowed to be set-off under the statutes of set-off, which are construed uniformly, in the light of public policy, to exclude the remedy in an action or any indebtedness of the state or municipality to one who is liable to the state or municipality for taxes.<br /><br />Government and taxpayer are not mutually creditors and debtors of each other under Article 1278 of the Civil Code and a claim for taxes is not such a debt, demand, contract or judgment as is allowed to be set-off.Arnel D. Mateohttp://www.blogger.com/profile/12877582104587922363noreply@blogger.com43tag:blogger.com,1999:blog-9056994990919176134.post-15750865399493799562008-05-29T22:58:00.000-07:002008-05-29T23:01:58.424-07:00Successive service of sentences.<strong>Rule:</strong> When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit<a title="" style="mso-footnote-id: ftn1" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn1" name="_ftnref1">[1]</a>; otherwise, in the imposition of the penalties, the order of their respective severity shall be followed so that they may be executed successively.<a title="" style="mso-footnote-id: ftn2" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn2" name="_ftnref2">[2]</a> (Material Accumulation System- absolute accumulation of crimes and penalties and establishes no limitation whatsoever and, accordingly, all the penalties for all the violations were imposed even if they reached beyond the natural span of human life. (Guevara))<br /><br /><strong>Threefold Rule</strong>- the maximum duration of the convict’s sentence shall not be more than threefold the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty shall be inflicted after the sum of those imposed equals the said maximum period. Such maximum penalty shall in no case exceed forty year.<a title="" style="mso-footnote-id: ftn3" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftn3" name="_ftnref3">[3]</a> (Juridical Accumulation System- the service of the several penalties imposed on one and the same culprit is limited to not more than three-fold the length of time corresponding to the most severe and in no case to exceed 40 years.)<br /><br />Duration of the convict’s sentence refers to several penalties for different offenses, not yet served out.<br /><br />Subsidiary imprisonment forms part of the penalty. (Bagtas vs. Director of Prisons, 84 Phil. 692, 698)<br /><br />Other system of penalty- Absorption system (the lesser penalties are absorbed by the graver penalties. Observed in the imposition of complex crimes (Art 48), continuing crimes, and specific crimes like robbery with homicide, etc.)<br /><br /><a title="" style="mso-footnote-id: ftn1" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref1" name="_ftn1">[1]</a> Par. 1, Art. 70, RPC<br /><a title="" style="mso-footnote-id: ftn2" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref2" name="_ftn2">[2]</a> Par 2, Art. 70, RPC.<br /><a title="" style="mso-footnote-id: ftn3" href="http://www.blogger.com/post-create.g?blogID=9056994990919176134#_ftnref3" name="_ftn3">[3]</a> Par. 4 and 5, Article 70, RPCArnel D. Mateohttp://www.blogger.com/profile/12877582104587922363noreply@blogger.com0tag:blogger.com,1999:blog-9056994990919176134.post-37393038279273270342008-05-29T09:52:00.000-07:002008-05-29T10:05:56.587-07:00Bar Exam Tips & Secrets<span style="color:#3333ff;"><strong>THE GREAT FORMULA<br />IN PASSING THE BAR EXAMINATIONS<br /></strong></span>Contributed by:<br /><span style="color:#ff6666;">Atty. Glenn M. Mortel<br /></span>(<a href="mailto:espogi4@yahoo.com">espogi4@yahoo.com</a>)<br /><br />"There is nothing that can help a bar examinee most than a constant and intensive study of the provisions of the various codes and the interpretation and application thereof by the Supreme Court in its decisions. By study is meant, that the provisions must be correctly understood and the thought or words thereof put to memory. After a chapter, for example, has been studied, the next one should be studied next, and after this, a review of all that has already been studied re-reviewed, to keep the subject matter and the provisions fresh in mind." - Alejo Labrador<br /><br />1. Actual preparation for the bar examination starts from the first day a law student attended class during the first year in the law school.<br /><br />2. The blooming secret in passing the bar examination is this: Present good answers that will make the examiners take notice. Good answers anchored upon logical reasoning, written in readable English and more importantly, justified by appropriate legal authority.<br /><br />3. If the candidates are at a loss as to what specific legal provisions or case doctrines to use in answering problems, the only alternative left for them is to use their own common sense.<br /><br />4. The key to passing the bar examinations is contained in one word: ARTICULATION. Articulation is expressive of the following basic fundamentals: good language, impressive presentation, logical reasoning and substantial background knowledge of law and procedure.<br /><br />5. The examinee who has a fairly good command of English, assuming that he is prepared in all other matters, stands definitely with a much better chance of passing.<br /><br />6. The responsive character of a given answer would depend to a great extent, on command of good language, logical reasoning and impressive presentation. This objective of preparing impressive and responsive answers can only be achieved by constant practice.<br /><br />7. Get this straight right now. Passing the bar examination has been, still is, and will always be a difficult proposition!<br /><br />8. No one can really help you pass the bar examination but yourself.<br /><br />9. The greatest blooming secret of passing the bar examination is and will always be: PREPARATION! Not just any kind of preparation, but proper, sound and systematic preparation.<br /><br />10. Systematic review can only be done by the use of what we call schedules which the candidate must follow vigorously to the letter if he expects to attain the best results.<br /><br />11. There will be times when you become sleepy while reviewing but never for one moment, tell yourself: Man, this review can wait! Do not be stupid. Always remind yourself that time is of the essence and is decidedly running too short for you.<br /><br />12. Force yourself to read, understand and absorb what law you reviewed. Otherwise, all your efforts will go to waste.<br /><br />13. Love and review cannot mix in the business of preparing for the bar examination.<br /><br />14. Early to bed, early to rise, that is the way to make a man healthy, wealthy and wise.<br /><br />15. A morning shower is a must.<br /><br />16. Never stay up late to the wee hours of morning, cramming law into your head. This would not do you any good. Remember, you have to conserve as much energy as you possibly can.<br /><br />17. Remember, keeping your health in good running condition is just as important as reviewing and passing the bar examination.<br /><br />18. Good handwriting is decidedly a great factor in passing the bar examination.<br /><br />19. To beat time, never write kilometric answers.<br /><br />20. By far the most important tool that the bar candidate could equip himself with which to tackle the examination that is inherently personal to him is command of written English.<br /><br />21. You have to write simple, grammatically correct English if you want to hurdle the examination.<br /><br />22. Presentation of answers that are not only good but logical, full of substance and supported by law and other authorities, are gems to the examiner, whether he has a good or black heart.<br /><br />23. Make your motto now: Stick to codal provisions! Compliment this with doctrines laid down in recent decisions of the Supreme Court.<br /><br />24. Impressive answers showing the candidates reasoning faculty is what the examiners want to read in your examination notebooks.<br /><br />25. Ability to retain your understanding of the substance of the law through efforts of study is more desirable quality to possess than mere ability to memorize legal provisions.<br /><br />26. Memorizing a particular provision of law word for word but without understanding it and its various implications is a lot of wasted effort.<br /><br />27. Never fail to read the newspapers when you are preparing for the bar examination. Read newspapers from 20 to 30 minutes every day.<br /><br />28. You can never expect to pass the bar examination without preparation.<br /><br />29. Predicting probable questions based on important principles or provisions of law is the safer method of speculating what the examiners are likely to ask in their examinations.<br /><br />30. Never depend on tips for your passing. But never brush these tips aside as nothing but trash. They may likely cause your downfall. Never, however, bank too much on them.<br /><br />31. Fountain or sign pens are really the most important equipment in bar examination. Never start for the examination without bringing along with you two or more fountain or sign pens.<br /><br />32. Like the weather, examiners are absolutely a bunch of unpredictable fellows, capable of asking unpredictable questions.<br /><br />33. Do not try to memorize 50 definitions or distinctions in any given time. Two or three will do.<br /><br />34. The real secret in remembering the matters contained in an enumeration is the use of keywords.<br /><br />35. Make your keywords on enumerations you consider important.<br /><br />36. Never leave a blank in an enumeration! However, if you use the letters a, b, c, etc. for numbers in the enumeration, so much the better. Ten to one, the examiner may not count his fingers. Make the first four in the enumeration definitely good.<br /><br />37. The bar candidate should do well to be always on guard against catchy questions capable of being answered in a number of ways, e.g. What is a complaint? The perfect answer should include both definitions in criminal and civil procedure.<br /><br />38. Never be content to answer questions with a mere yes or no. You must, at all times, give justification why your answer is a yes or no. Unless, of course, the examiner qualifies his question with instruction enclosed in parenthesis like: (Answer with a yes or no only).<br /><br />39. Always determine the real facts (examiners have the bad habit of including irrelevant facts to confuse you) and the issue or issues in controversy. Which side you take, always justify your side with reasons based on law, rule, equity and justice. Whatever your answer may be, provided it is written in legible language, the examiner will never deny you the corresponding credit you deserve.<br /><br />40. Always remember, make efforts to frame your answers so that they are responsive to the questions. Never beat around the bush. Go right straight ahead with your answer. Avoid citations if and when you are not absolutely sure about them. The shorter the answers are, the more direct, the better. Avoid display of flowery expressions which are complicated by legal verbosity. All you need are sensible, direct and reasonable answers that are responsive to the questions.<br /><br />41. Legal knowledge is not enough to solve a particular legal issue. What is important is ability to apply this knowledge to the solution of legal controversies.<br /><br />42. The most convenient method of tackling problem questions is to present immediately the conclusion of a given answer. Practice, practice, constant practice will help the bar candidate write good answers that examiners will give favorable credit.<br /><br />43. The technique of writing down answers responsive to questions is a matter that the candidate must learn as a matter of imperative necessity.<br /><br />44. Brevity and directness when done properly could make an answer both effective and impressive. However, when overdone to a point where the ideas sought to be conveyed becomes vague and difficult to understand, they become a liability.<br /><br />45. Never forget that every candidate is a potential bar topnotcher.<br /><br />46. So, if you are a candidate just preparing for the bar examination, whose chances of passing are quite problematical, just limit your ambition for the present to just working hard to obtain a 75 percent in the great battle of your life.<br /><br />47. Take comfort in this: That even those who become lawyers by "just luck", are making good in the practice of law. Nothing can really put a determined man down.<br /><br />48. In your preparation for the greatest battle of your life, call upon Him who is the source of all knowledge, wisdom and understanding. In deep humility, bended knees and tears, He will make all things beautiful in His time. Victory belongs to the most persevering!<br /><br />Note:<br />All excerpts, except the last (No. 48), were taken by Atty. GLENN M. MORTEL from the book "SECRETS ON HOW TO PASS THE BAR EXAMINATION" by Dean Wenceslao G. Laureta, 1990 edition.<br /><br />Source: Atty. Ralph's Website, <a href="http://www.attyralph.com/BarTips/6.The_Great_Formula.html">http://www.attyralph.com/BarTips/6.The_Great_Formula.html</a>Arnel D. Mateohttp://www.blogger.com/profile/12877582104587922363noreply@blogger.com2tag:blogger.com,1999:blog-9056994990919176134.post-3169730842140280652008-03-30T23:18:00.000-07:002008-03-30T23:23:57.524-07:00The Writ of Habeas Data (by Chief Justice Reynato Puno)(This is a speech delivered by Supreme Court Chief Justice Reynato S. Puno on 19 November 2007, at the UNESCO Policy Forum and Organizational Meeting of the Information for all Program (IFAP), Philippine National Committee.)<br /><a id="more-377"></a><br />All over the world, judiciaries have been entertaining complaints and issuing writs pursuant to their task of pacifying disputes and resolving conflicts — more importantly, in guaranteeing the protection and vindication of rights of the individual against violations by public authorities and private entities.<br /><br />In the history of law, filing an individual petition before courts to invoke constitutional rights has long been granted a substantive recognition. The first and perhaps most famous of these is the petition for a <a href="http://jlp-law.com/blog/writ-habeas-corpus/">writ of habeas corpus</a>, roughly translated, “You should have the body.” The writ of habeas corpus is a guarantee against deprivation of liberty of a person. It originated in the Middle Ages in England, recognized in the several versions of the Magna Carta, so that a person held in custody is brought before a judge or court to determine whether the detention is lawful or otherwise.<br /><br />Aside from the <a href="http://jlp-law.com/blog/writ-habeas-corpus/">writ of habeas corpus</a>, several writs have been developed to protect the rights of the individual against the State. In the United States of America, the writs of mandamus, prohibition, and certiorari are used to command a governmental agency to perform a ministerial function, prohibit the commission of an illegal act, or correct an erroneous act committed with grave abuse of discretion. In the Latin American countries, particularly Mexico and Argentina, they crafted the <a href="http://jlp-law.com/blog/writ-of-amparo-questions-and-answers/">writ of </a><a href="http://jlp-law.com/blog/writ-of-amparo-questions-and-answers/">amparo</a> which protects a whole gamut of constitutional rights. In Taiwan, they have the writ of respondeat superior that makes a superior liable for the acts of the subordinate. There are other mechanisms to protect human rights, but the most recent of these legal mechanisms is the <a href="http://jlp-law.com/blog/writ-of-habeas-data-questions-and-answers/">writ of habeas data</a>.<br /><br />The habeas corpus writ has been used for more than five centuries now. The writ of amparo has been used in Mexico in mid-19th century. Compared to those two, the writ of habeas data has a very short history.1 The writ of habeas corpus can be traced way back to as early as 1215 in the United Kingdom and subsequently codified in 1679;2 the writ of amparo first appeared in the State of Yucatan in 1841 and later in the Federal Constitution of Mexico in 1857. The roots of the writ of habeas data can be traced to the Council of Europe’s 108th Convention on Data Protection of 1981. The writ of habeas data may be said to be the youngest legal mechanism to appear in the legal landscape. A comparative law scholar has described habeas data as “a procedure designed to safeguard individual freedom from abuse in the information age.”3<br /><br />The European Data Protection Convention of 1981 was convened to develop safeguards to secure the privacy of the individual by way of regulating the processing of personal information or data. In countries like Germany, the use of the writ of habeas data was justified by invoking the people’s right to individual self-determination. In Latin American countries, however, it found use as an aid in solving their perennial problem of protecting the individual against human rights abuses.<br /><br />Looking at the landscape of several Latin American countries, one will find that the writ of habeas data has been embedded as a direct constitutional right.4 The scope and concept of this writ vary from country to country; but in general, it is designed to protect – by means of an individual complaint presented to a constitutional court – the image, privacy, honor, information self-determination and freedom of information of a person.<br /><br />The first Latin American country to adopt the writ of habeas data is the Federal Republic of Brazil. In 1988, the Brazilian legislature voted a new Constitution, which included a novel right: the right to initiate a habeas data complaint on the part of a citizen. It is expressed as a full constitutional right under Article 5, Title II of the 1988 Brazilian Constitution, which I quote:<br /><br />" Habeas Data shall be granted: (1) to ensure the knowledge of information related to the person of the petitioner, contained in records or databanks of government agencies or of agencies of a public character; (2) for the correction of data, when the petitioner does not prefer to do so through a confidential process, either judicial or administrative."5<br /><br />This constitutional provision was further bolstered by Brazil’s National Congress in a 1997 regulatory law (Congreso Nacional de Brasil, Lei 9507).<br /><br />Following the Brazilian example, Colombia incorporated the habeas data right in its 1991 Constitution. The 1991 Colombian Constitution, as reformulated in the 1997 version, recognizes the right to individual privacy and recognizes that the citizens shall have “the right to know, access, update and rectify any information gathered about them in databases, both public and private.”6 In due time, many countries followed suit and adopted the new legal tool in their respective constitutions: Paraguay in 1992, Peru in 1993, Argentina in 1994, and Ecuador in 1996.<br /><br />The 1992 Paraguay Constitution follows the model set by Brazil, but has a stronger protection. Article 135 of the Paraguayan Constitution provides:<br /><br />"Everyone may have access to information and data available on himself or assets in official or private registries of a public nature. He is also entitled to know how the information is being used and for what purpose. He may request a competent judge to order the updating, rectification, or destruction of these entries if they are wrong of if they are illegitimately affecting his rights.7<br />Aside from giving individuals the right to find out what information is being kept about them, the writ of habeas data seeks to protect the right to find out what use and for what purpose such data are being collected. The petitioner is also given the opportunity to question the data and demand their “updating, rectification, or destruction.”8<br /><br />The Peruvian Constitution also recognizes the writ of habeas data. In Article 200, Section 3 of the Constitution of Peru, a similar provision much like Brazil’s and Paraguay’s can be found. More than that, their legislature was quick enough to provide for a regulatory law that took effect on April 18, 1995. The law recognized not only the procedural guarantees of updating one’s data as contained in manual or physical records, but also recognizing one’s right to update one’s “automated” data – those personal data kept and supplied by any “information service, automated or not.”9 In this model, the habeas data remedy may be enforced against automated or digitized records.<br /><br />In Argentina, the writ of habeas data is not specifically called “habeas data” but is subsumed by the Argentine writ of amparo. Under Article 43 of the Argentine Constitution, entitled “The Writ of Amparo” or protection, it is stated thus:<br /><br />"Any person may file this action (referring to the writ of habeas data) to obtain information on the data about himself and their purpose, registered in public records or data bases, or in private ones intended to supply information; and in case of false data or discrimination, this action may be filed to request the suppression, rectification, confidentiality or updating of said data. The secret nature of the sources of journalistic information shall not be impaired.10<br /><br />The Argentine version, though not called habeas data, is more comprehensive than other Latin American models. Like the Paraguay model, the Argentine version includes the judicial remedy to enforce one’s right to access, rectify, update, or destroy the data. This model also guarantees the confidentiality of personal or private information and makes specific the protection of journalistic privilege, of the lofty democratic role of the press.<br /><br />Several studies in legal literature deal with the varying effects of the writ of habeas data. Legislatures in Latin America and in Europe are constantly reviewing the parameters of the writ and the extent of its regulation. The writ ought to be constantly reviewed, especially in this age of Information Technology, when privacy can easily be pierced by the push of a button. But these studies undeniably show that the writ of habeas data has become “an excellent Human Rights tool mostly in the countries that are recovering from military dictatorships.”11<br /><br />In Paraguay, for instance, an action for a writ of habeas data was filed to view police records bringing to light several atrocities that had been committed at that site. In Argentina, the Argentine Supreme Court ruled that the writ of habeas data was available to the families of the deceased in a case involving extralegal killings and enforced disappearances. It gave the victims access to police and military records otherwise closed to them. In essence, the decision established a right to truth.<br /><br />The right to truth is fundamental to citizens of countries in transition to democracy, especially those burdened by legacy of massive human rights violations. This right entitles the families of disappeared persons to know the totality of truth surrounding the fate of their relatives. The exercise of the right is particularly crucial in disappearances driven by politics, because they usually involve secret execution of detainees without any trial, followed by the concealment of the body with the purpose of erasing all material traces of the crime and securing impunity for the perpetrators. Indeed, truth is the bedrock of all legal systems, whether the system follows the common law tradition or the civil law tradition. Justice that is not rooted in truth is injustice in disguise. That kind of justice will not stand the test of time, for it is not anchored on reality but on mere images.<br /><br />Recently, the Supreme Court En Banc promulgated the Rule on the Writ of Amparo. The Philippine version of the writ of amparo is designed to protect the most basic right of a human being, which is one’s right to life, liberty and security guaranteed by all our Constitutions starting with the 1898 Declaration of Philippine Independence and the Universal Declaration of Human Rights of 1948. We are studying further how to strengthen the role of the judiciary as the last bulwark of defense against violation of the constitutional rights of our people especially their right to life and liberty by the use habeas data. It is our fervent hope that with the help of the <a href="http://jlp-law.com/blog/writ-habeas-corpus/">writ of habeas corpus</a>, the <a href="http://jlp-law.com/blog/writ-of-amparo-questions-and-answers/">writ of amparo</a> and the <a href="http://jlp-law.com/blog/writ-of-habeas-data-questions-and-answers/">writ of habeas data</a>, we can finally bring to a close the problem of extralegal killings and enforced disappearances in our country, spectral remains of the Martial Law regime.<br /><br />A pleasant day to all.<br />——————————–<br /><br />Footnotes:<br />1 See Andres Guadamuz, Habeas Data and the European Data Protection Directive, THE JOURNAL OF INFORMATION, LAW AND TECHNOLOGY (JILT) (2001).<br />2 The Habeas Corpus Act of 1679. See 1 BLACKSTONE, COMMENTARIES 131 (1st ed. 1765-1769).<br />3 ENRIQUE FALCON, HABEAS DATA: CONCEPTO Y PROCEDIMIENTO 23 (1996) (translation provided).<br />4 Andreas Guadamuz, Habeas Data: An Update on Latin America Data Protection Constitutional Right, paper presented during the 16th BILETA Annual Conference, Edinburgh, Scotland, April 910, 2001.<br />5 1988 Constitution of the Federal Republic of Brazil, Art. 5, §71. Available online at: http://www.georgetown.edu/LatAmerPolitical/Constitutions/Brazil/brtitle2.html (last accessed November 15, 2007).<br />6 1997 Colombian Constitution, Art. 15 (Constitucion Politica de Colombia), available online at http:// www.georgetown.edu/LatAmerPolitical/Constitutions/Colombia/Colombia.html (last accessed November 15, 2007).<br />7 1992 Paraguay Constitution, Art. 135, translated by Peter Heller, available online at http://www.uni-wuezburg.de/law/pa00t__.html (last accessed November 15, 2007).<br />8 Id.<br />9 1993 Peruvian Political Constitution (Constitucion Politica del Peru), Art. 2, §6.<br />10 Constitution of the Argentine Nation of 1853, as amended by the 1994 Constitutional Reform, Article 43 (as translated by the Argentine Congress).<br />11 Guadamuz, Habeas Data, n.43.Arnel D. Mateohttp://www.blogger.com/profile/12877582104587922363noreply@blogger.com0tag:blogger.com,1999:blog-9056994990919176134.post-76171463944500802702008-03-30T22:47:00.000-07:002008-03-30T23:15:36.444-07:00WRIT OF HABEAS DATA: A. M. No. 08-1-16-SC<strong>What is the writ of habeas data? </strong><br /><br />Section 1. Habeas Data. - The writ of habeas data is a remedy available to any person whose <strong><em><span style="color:#3366ff;">right to privacy</span></em></strong> in <strong><em><span style="color:#3366ff;">life, liberty or security</span></em></strong> is <strong><em><span style="color:#3366ff;">violated or threatened by an unlawful act or omission</span></em></strong> of <strong><em><span style="color:#3366ff;">a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.</span></em></strong><br /><strong><em><span style="color:#3366ff;"></span></em></strong><br /><span style="color:#000000;"><strong>Who may file?</strong></span><br /><br /><strong><em><span style="color:#3366ff;">Any aggrieved party</span></em></strong> may file a petition for the writ of habeas data. However, <strong><em><span style="color:#3366ff;">in cases of extralegal killings and enforced disappearances, the petition may be filed by</span></em></strong>:<br /><br />(a) <strong><em><span style="color:#3366ff;">Any member of the immediate family of the aggrieved party</span></em></strong>, namely: the spouse, children and parents; or<br /><br />b) <strong><em><span style="color:#3366ff;">Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity</span></em></strong>, in default of those mentioned in the preceding paragraph;<br /><br /><strong>Where to file?</strong><br /><br />SEC. 3. Where to File. ? The petition may be filed with the <strong><em><span style="color:#3366ff;">Regional Trial Court</span></em></strong> where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner.<br /><br />The petition may also be filed with <span style="color:#3366ff;"><strong><em>the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices</em></strong>.</span><br /><span style="color:#3366ff;"></span><br /><strong><span style="color:#000000;">When is the Writ issued?</span></strong><br /><span style="color:#3366ff;"></span><br /><span style="color:#000000;">SEC. 7. Issuance of the Writ. ? <strong><em><span style="color:#3366ff;">Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue.</span></em></strong> The clerk of court shall issue the writ under the seal of the court and cause it to be served within three (3) days from the issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person serve it.<br /></span><br /><span style="color:#000000;">The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance.</span><br /><br /><strong>Effect of service of writ to respondent?</strong><br /><br />SEC. 10. Return; Contents. ? <strong><em><span style="color:#3366ff;">The respondent shall file a verified written return</span></em></strong> together with supporting affidavits within five (5) working days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following:<br /><br />(a) The <strong><em><span style="color:#3366ff;">lawful defenses </span></em></strong>such as national security, state secrets, privileged communications, confidentiality of the source of information of media and others;<br /><br />(b) In case of respondent in charge, in possession or in control of the data or information subject of the petition;<br /><br />(i) a <strong><em><span style="color:#3366ff;">disclosure of the data or information about the petitioner</span></em></strong>, the nature of such data or information, and the purpose for its collection;<br /><br />(ii) the <strong><em><span style="color:#3366ff;">steps or actions taken by the respondent to ensure the security and confidentiality of the data or information</span></em></strong>; and,<br /><br />(iii) the <strong><em><span style="color:#3366ff;">currency and accuracy of the data or information held</span></em></strong>; and,<br /><br />(c) Other allegations relevant to the resolution of the proceeding.<br /><br /><strong>When is there HEaring of Defenses?</strong><br /><br />SEC. 12. When Defenses May be Heard in Chambers. ? A hearing in chambers may be conducted <strong><em><span style="color:#3366ff;">where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character.</span></em></strong><br /><strong><em><span style="color:#3366ff;"><br /></span></em></strong>A general denial of the allegations in the petition shall not be allowed.Arnel D. Mateohttp://www.blogger.com/profile/12877582104587922363noreply@blogger.com0tag:blogger.com,1999:blog-9056994990919176134.post-85690391974615866662008-03-30T22:03:00.000-07:002008-03-30T22:42:45.675-07:00WRIT OF AMPARO: A.M. No. 07-9-12-SC<strong>What is a writ of amparo? </strong><br /><br />Section 1. Petition. - The petition for a writ of amparo is a <strong>remedy available to any person whose right to <span style="color:#3366ff;"><em>life, liberty and security</em></span> is <em><span style="color:#3366ff;">violated or threatened with violation</span></em> by an <em><span style="color:#3366ff;">unlawful act or omission</span></em> of a <em><span style="color:#3366ff;">public official or employee, or of a private individual or entity.</span></em></strong><br /><br /><strong>The writ shall cover extralegal killings and enforced disappearances or threats thereof.</strong><br /><br /><strong>Who may file? </strong><br /><br />Sec. 2. Who May File. - The petition may be filed by the <strong><span style="color:#3366ff;"><em>aggrieved party</em></span></strong> or <strong><em><span style="color:#3366ff;">by any qualified person or entity in the following order:<br /></span></em></strong><br />1. Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;<br /><br />2. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or<br /><br />3. Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party.<br /><br />The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein.<br /><br /><strong>Where to file? </strong><br /><br />Sec. 3. Where to File. - The petition may be filed <strong><em><span style="color:#3366ff;">on any day and at any time</span></em></strong> with the <strong><em><span style="color:#3366ff;">Regional Trial Court</span></em></strong> of the place where the threat, act or omission was committed or any of its elements occurred, or with the <span style="color:#3366ff;"><strong><em>Sandiganbayan, the Court of Appeals, the Supreme Court</em></strong>,</span> or <strong><em><span style="color:#3366ff;">any justice of such courts</span></em></strong>. The <strong><em><span style="color:#3366ff;">writ shall be enforceable anywhere in the Philippines.</span></em></strong><br /><br />When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such court or judge.<br /><br />When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.<br /><br />When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.<br /><br /><strong>When is the writ issued?</strong><br /><br />Sec. 6. Issuance of the Writ. - Upon the filing of the petition, <strong><em><span style="color:#3366ff;">the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue.</span></em></strong> The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it.<br /><br />The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance.<br /><br /><strong>How the writ is served?</strong><br /><br />Sec. 8. How the Writ is Served. - The writ shall be <strong><em><span style="color:#3366ff;">served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge</span></em></strong> who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply.<br /><br /><strong><span style="color:#ff0000;">Effect of the service of writ of amparo? </span></strong><br /><strong><span style="color:#ff0000;"></span></strong><br />Sec. 9. Return; Contents. - Within seventy-two (72) hours after service of the writ, the <strong><em><span style="color:#3366ff;">respondent shall file a verified written ret</span><span style="color:#3366ff;">urn</span></em></strong> together with supporting affidavits which shall, among other things, contain the following:<br /><br />1. The <strong><em><span style="color:#3366ff;">lawful defenses</span></em></strong> to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission;<br /><br />2. The <strong><em><span style="color:#3366ff;">steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission</span></em></strong>;<br /><br />3. <strong><em><span style="color:#3366ff;">All relevant information</span></em></strong> in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and<br /><br />4. If the respondent is a public official or employee, the return shall further state the <strong><em><span style="color:#3366ff;">actions that have been or will still be taken</span></em></strong>:<br /><br />1. to <strong><em><span style="color:#3366ff;">verify the identity</span></em></strong> of the aggrieved party;<br /><br />2. to <strong><em><span style="color:#3366ff;">recover and preserve evidence related to the death or disappearance</span></em></strong> of the person identified in the petition which may aid in the prosecution of the person or persons responsible;<br /><br />3. to <strong><em><span style="color:#3366ff;">identify witnesses</span></em></strong> and obtain statements from them concerning the death or disappearance;<br /><br />4. to <strong><em><span style="color:#3366ff;">determine the cause, manner, location and time of death or disappearance</span></em></strong> as well as any pattern or practice that may have brought about the death or disappearance;<br /><br />5. to <strong><em><span style="color:#3366ff;">identify and apprehend the person or persons involved in the death or disappearance</span></em></strong>; and<br /><br />6. to <strong><em><span style="color:#3366ff;">bring the suspected offenders before a competent court</span></em></strong>.<br /><br />The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case.<br /><br />A general denial of the allegations in the petition shall not be allowed.<br /><br /><strong>Are there available interim reliefs? </strong><br /><br />Yes, <strong><em><span style="color:#3366ff;">(a) Temporary Protection Order. (b) Inspection Order. (c) Production Order. (d) Witness Protection Order.</span></em></strong> (Section 14) (B and C are available to the respondents as well: section 15)<br /><br /><strong>When is judgment rendered? </strong><br /><br />Sec. 18. Judgment. - The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied.Arnel D. Mateohttp://www.blogger.com/profile/12877582104587922363noreply@blogger.com0tag:blogger.com,1999:blog-9056994990919176134.post-27064668785138471502007-08-28T23:08:00.000-07:002007-08-28T23:34:38.174-07:00AGABON vs. NLRC, November 17, 2004By Atty. Golda Benjamin<br /><strong></strong><br /><strong>Facts:<br /></strong>® Virgilio and Jenny Agabon were cornice installers of Riviera Home Improvements, a company engaged in the business of selling ornamental construction materials.<br /><br />® They were employed from January 2, 1992 until February 23, 1999, when they were dismissed for abandonment of work.<br /><br />® The Agabons filed a complaint for illegal dismissal before the LA, who ruled in their favor. The NLRC reversed on appeal. The CA sustained the NLRC’s decision<br /><br />® The Agabons further appealed to the SC, disputing the finding of abandonment, and claiming that the company did not comply with the twin requirements of notice and hearing.<br /><br /><strong>Issue:</strong> WON the Agabons were illegally dismissed<br /><br /><strong>Held:</strong> NO<br /><br />Ratio:<br />® Substantive due process (EEs must be dismissed for just or authorized cause): SC upheld the finding of abandonment, because the act of the Agabons in seeking employment elsewhere clearly showed a deliberate intent to sever the ER-EE relationship.<br /><br />® Procedural due process (for just cause, there must be a written notice informing him of grounds for termination, a hearing or opportunity to be heard, and a final notice of termination stating the grounds therefor): There was no due process because ER did not send the requisite notices to the last known address of the EEs. ER only gave a flimsy excuse that the notice would be useless because the EEs no longer lived there. This is not a valid excuse, they should have still sent a notice as mandated by law.<br /><br />® For not sending the requisite notices, the ER should be held liable for non-compliance with the procedural requirements of due process.Arnel D. Mateohttp://www.blogger.com/profile/12877582104587922363noreply@blogger.com0tag:blogger.com,1999:blog-9056994990919176134.post-43443854845238383952007-08-28T23:10:00.000-07:002007-08-28T23:34:09.077-07:00What is the ER’s liability for non-compliance with requirements of procedural due process?By Atty. Golda Benjamin<br /><strong></strong><br /><strong>History of SC rulings:<br /></strong><br /><strong>1. Wenphil ruling or Belated Due Process Rule (8 Feb 1989)</strong> – where the employer had a valid reason to dismiss an employee but did not follow the due process requirement, the dismissal may be upheld but the employer will be penalized to pay an indemnity to the employee.<br />® In this particular case, the ER was required to pay an indemnity of P1,000 to the EE. The measure of the award depends on the facts and circumstances of the case, and the gravity of the omission committed by the ER<br /><br /><strong>2. Serrano doctrine (27 Jan 2000)</strong> – the violation by the employer of the notice requirement in termination for just or authorized causes was not a denial of due process that will nullify the termination. However, the dismissal is ineffectual and the employer must pay full backwages from the time of termination until it is judicially declared that the dismissal was for a just or authorized cause.<br />® Rationale for change from Wenphil to Serrano: the significant number of cases involving dismissals without requisite notices (dismiss now, pay later). The imposition of penalty by way of damages for violation of the notice requirement was not serving as a deterrent.<br /><br /><strong>3. Agabon doctrine<br /></strong><br />® After carefully analyzing the consequences of the divergent doctrines in the law on employment termination, the SC believes that in cases involving dismissals for cause but without observance of the twin requirements of notice and hearing, the better rule is to abandon the Serrano doctrine and to follow Wenphil by holding that the dismissal was for just cause but imposing sanctions on the employer.<br /><br />® Such sanctions, however, must be stiffer than that imposed in Wenphil. By doing so, this Court would be able to achieve a fair result by dispensing justice not just to employees, but to employers as well.<br /><br />® The unfairness of declaring illegal or ineffectual dismissals for valid or authorized causes but not complying with statutory due process may have far-reaching consequences. This would encourage frivolous suits, where even the most notorious violators of company policy are rewarded by invoking due process. This also creates absurd situations where there is a just or authorized cause for dismissal but a procedural infirmity invalidates the termination.<br /><br />® Where the dismissal is for a just cause, as in the instant case, the lack of statutory due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee for the violation of his statutory rights. The indemnity to be imposed should be stiffer to discourage the abhorrent practice of “dismiss now, pay later,” which we sought to deter in the Serrano ruling. The sanction should be in the nature of indemnification or penalty and should depend on the facts of each case, taking into special consideration the gravity of the due process violation of the employer.<br /><br />® Under the Civil Code, nominal damages is adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him<br /><br />® The violation of the petitioners’ right to statutory due process by the private respondent warrants the payment of indemnity in the form of nominal damages. The amount of such damages is addressed to the sound discretion of the court, taking into account the relevant circumstances. Considering the prevailing circumstances in the case at bar, the court deems it proper to fix it at P30,000.00. The court believes this form of damages would serve to deter employers from future violations of the statutory due process rights of employees. At the very least, it provides a vindication or recognition of this fundamental right granted to the latter under the Labor Code and its Implementing Rules.Arnel D. Mateohttp://www.blogger.com/profile/12877582104587922363noreply@blogger.com0